Chemical Safety Improvement Act: Three More Areas of Concern Part III

Margaret BraginetzFebruary 19, 2014

Some time ago, AMD became curious about how much protection from toxic substances the general public can expect from the numerous and complex laws passed. The obvious starting point was the Toxic Substance Control Act (TSCA), the basic authority wielded by the Environmental Protection Agency (EPA). Finding that the TSCA was considered failed legislation by both the chemicals industry and environmental conservation groups, the logical next step was to focus on the Chemical Safety Improvement Act, the newly proposed legislation intended to remedy the flaws of the TSCA and bolster EPA’s effectiveness as a protection agency. Part II of this series covered several troubling areas of CSIA: the chemicals industry’s heavy investment in it, the inability of states to enact more protective legislature of their own, and the roadblocks laid for an individual seeking recourse for damages. The final three areas AMD would like to address are protection of vulnerable groups, the Significant New Use Rules and the Confidential Business Information inventory.

There is a one-word answer to the matter of protection for vulnerable groups: none. Vulnerable groups are comprised of individuals who are more susceptible to harm from exposure to toxic chemicals, such as pregnant women and developing children. This area is of such concern, that the Safer Chemicals Healthy Families organization ranks protection for the vulnerable population number one on its list of improvements the CSIA should deliver. The Safer Chemicals Healthy Families organization and the National Academy of Sciences are convinced that generally accepted science has shown that the developing child and pregnant women are especially vulnerable to toxic chemicals. Others who probably should be considered an especially vulnerable group are those individuals who sustain constant exposure to unsafe chemicals on the job. Although OSHA (Occupational Health & Safety Administration) currently regulates exposure to 400 on-the-job substances, mostly in the area of paints, fuels and solvents, there are 62,000 chemical substances listed under TSCA that are of questionable safety. OSHA is not enough protection. As if these vulnerable individuals are not enough, what about people who do not fit neatly into any of the aforementioned vulnerable groups, like the embattled communities near coal ash dump sites? The Earth Justice organization, an organization of lawyers who take the pollution fight to the courts, decries the legislative failure to address such ‘hot spots’ as these.

Regarding Significant New Use Rules (SNUR), the rules remain essentially the same. An important adjustment to this category is the addition of all substances created by a relatively new technology: nano technology. Nano substances are defined by their minute size ‘ almost any substance, organic or inorganic, may be reduced to nanoscale. Currently, nanoscale substances are treated on a case-by-case basis, and may not be subjected to the full rigors of safety testing. However, since nanoscale materials, as defined by the National Toxicology Initiative, ‘possess unique optical, magnetic, or electrical properties,’ every nanoscale substance is virtually a completely new use of the original full-size substance. This is important, because the nature of such miniscule materials has not yet been determined to be safe. Certainly, more research is required and, hopefully, necessary regulations may be imposed before a critical health situation (like asbestos) is reached. Unfortunately, some nanoscale ingredients have already entered the commercial food market and will be grandfathered in under the presumption of safety that permeates the US chemicals industry.

Finally, CSIA offers virtually no change to the procedure that allows chemical manufacturers to apply for and receive special secretive status for chemicals they claim require protection under the Confidential Business Information (CBI) section of TSCA. The bill does not require the EPA to disclose the number and duration of CBI claims it grants to chemicals, and the chemicals currently granted anonymity under CBI claims will be grandfathered in. CSIA makes no provision for manufacturers of chemicals listed in the ‘secret inventory’ to reassert and re-substantiate CBI claims on a periodic basis. The Center for Environmental Health organization, along with most other environmental groups, severely criticizes the CSIA for limiting health professionals’ access to information about the identity of secret chemicals. The Safer Chemical Organization states the case well: ‘The burgeoning ‘secret inventory’ of chemicals undermines the transparency of the program. The absurd consequence is that you can see there is a chemical on the inventory that causes cancer, you just can’t find out which chemical.’

However, revision of the CBI claim procedure with its resulting ‘secret inventory’ is still likely to be achieved, though not as a part of CSIA. It was reported in January 2014 that the EPA announced plans to issue a proposed rule (to be released in the spring of 2014) that would require companies making CBI claims to reassert and re-substantiate those claims on a periodic basis. According to ChemicalWatch, this period of time is likely to be five years. Further, ChemicalWatch cites two critical areas that still might be cause for concern, depending on how the EPA rule is written: (1) will current CBI claims be evaluated immediately, or will there be a grace period (the length of the periodic re-assessment) before mandatory re-substantiation applies; (2) whether individual chemicals must be disclosed, as opposed to type, or family, of chemicals. It is, as yet, unknown how this new rule will affect the chemicals participating in EPA’s Voluntary Declassification Challenge, which was initiated in 2010.

On a final, very sad note: CSIA is not the first ‘fix’ aimed at TSCA, nor is it the only ‘TSCA-fix’ legislation that was introduced in 2013. In 2011, the Safe Chemicals Act was sponsored by 2 Senators and co-sponsored by 27 others; it was revised and re-introduced in 2013. The Safe Chemicals Act is emphatically not backed by the chemicals industry. Also, the Safe Chemicals Act is not bipartisan and, as such, has only an 11 percent chance of passing. The Safe Chemicals Act is, however, much, much stronger and would provide much more protection to the health of the population and the environment. The CSIA is considered by many to be a full retreat from the Safe Chemicals Act. In whatever form the CSIA finally takes, there is virtually no chance it will be the more protective legislation.

Overall, AMD’s review of TSCA and CSIA hardly scratches the surface of the complexity of the protection-from-chemicals problem. In one of AMD’s upcoming articles, we will review common food sources and the chemicals/ingredients never mentioned by food growers, grocery store outlets, and food processors. In one of our next articles, we will follow a meal from the farmer’s ground to the table. It might be surprising to find out what is, and is not, at the dinner table.